In the United States, an employee may have a legal right to medical leave under certain circumstances. These medical leave rights are protected under the federal Family and Medical Leave Act (FMLA). FMLA provides that a qualified employee may take a maximum of 12 weeks of unpaid leave without the fear of losing their job.
Is it legal for a worker to be fired while on FMLA leave? The answer depends on the circumstances. While an employee can be terminated while on leave, they cannot be terminated because they took medical leave. Our Virginia leave of absence attorneys explain the most important things to know about employee termination and medical leave.
Time Off Under FMLA is Job-Protected
FMLA provides job-protected leave. When an employee is ready to return from medical leave or when they run out of medical leave, they generally have the right to be reinstated by their employer at the same or a similar position.
Federal protections apply to all businesses and organizations that have at least 50 total workers at locations within a 75-mile radius. Assuming an employee at one of these firms has put insufficient hours, they have a right to take medical leave for a qualifying emergency.
An Employee Can Still Be Terminated While on Medical Leave
As FMLA medical leave is job-protected, it may seem odd that an employee can still be terminated after taking it. Our Virginia employment lawyers should clarify that the Family and Medical Leave Act does not guarantee anyone a job. An employer still has the right to make their own hiring and firing decisions. Medical leave does not protect an employee against:
- Legitimate downsizing;
- Genuine restructuring by a business or organization;
- Termination for a cause — such as poor performance.
The FMLA is focused on stopping employers from retaliating against workers who need to take leave and guarantees that an employee cannot be punished in any way because they took medical leave.
An Employee Cannot Be Terminated Because They Took Medical Leave
An employee can lawfully be terminated while on medical leave if they would have been terminated regardless of whether they exercised their rights under the FMLA.
However, if an employer fires or lays off a worker because they took medical leave, then the termination is unlawful.
Indeed, an employee’s decision to take job-protected medical leave cannot be used against them at all. It cannot be considered as a factor — even a small factor — in an employer’s decision to remove them from their position.
Contact Our Virginia Medical Leave Employment Lawyers for Guidance and Advice
At Pierce McCoy, PLLC, our Virginia employment law attorneys have deep experience representing employers and employees in medical leave cases. Professional assistance is available. If you have any questions about employment termination and medical leave, we are more than happy to help.
Give us a call or reach out to us online for a completely confidential review of your case. With legal offices in Norfolk and Richmond, we provide employment services throughout Virginia.